0120121758
07-09-2012
Corazon Reyes, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Corazon Reyes,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121758
Hearing No. 460-2011-00089X
Agency No. 2003-0580-2010103936
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 27, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Registered Nurse at the Agency's Nursing Unit 5B, Surgical Care Unit, Operative Care Line, Michael E. DeBakey Medical Center in Houston, Texas.
On August 25, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (Filipino), national origin (Philippines), sex (female), age (over 40), and in reprisal for prior EEO activity when:
1. on June 4, 2010, her supervisor (S1) charged her Absent Without Leave (AWOL);
2. on July 2, 2010, S1 denied her compensatory time;
3. on July 10, 2010, S1 denied her annual leave;
4. on July 11, 2010, S1 charged her AWOL;
5. on July 22, 2010, management denied her request to be reassigned to another nursing unit;
6. on July 26, 2010, S1 changed her tour of duty from working twelve-hour shifts to working 12:00 am to 8:00 a.m.;
7. on August 10, 2010, S1 denied her request to working twelve-hour shifts;
8. on August 22, 2010, S1 permanently changed her work schedule so that she would not have Sundays off;
9. on August 28, 2010, management denied her August 9, 2010 request for reassignment;
10. on September 10, 2010, S1 denied her compensatory time;
11. on October 8, 2010, S1 denied her family medical leave;
12. when the Agency produced a hostile work environment by:
a. during January 2010 and February 2010, S1 yelled, screamed and intimidated her in the presence of her peers;
b. on June 3, 2010, S1 denied her to switch schedules with [a named co-worker] and made the statement he would not allow her to switch schedules with anybody;
c. on June 4, 2010, S1 charged her AWOL;
d. on June 4, 2010, S1 humiliated her when he loudly stated "you don't even know how to read;"
e. on June 10, 2010, S1 yelled, screamed, humiliated and intimidated her in the presence of her peers;
f. on June 24, 2010, her second-line supervisor failed to take action when she reported S1's unprofessional conduct;
g. on July 2, 2010, S1 denied her compensatory time;
h. on July 10, 2010, S1 denied her annual leave;
i. on July 11, 2010, he charged her AWOL;
j. on July 21, 2010, he yelled in a loud angry voice, in front of her peers "you can't even say good morning;"
k. on July 22, 2010, management denied her request to be reassigned to another unit;
l. on or about July 26, 2010, S1 changed her tour of duty working twelve- hours shifts to working 12:00 a.m. to 8:00 a.m.;
m. on August 2, 2010, in a loud voice, S1 questioned her about the use of compensatory time in the presence of her peers;
n. on August 10, 2010, S1 denied her request to return to working twelve-hour shifts;
o. on August 22, 2010, S1 permanently changed her work schedule so that she would not have Sundays off;
p. on August 28, 2010, management denied her August 9, 2010 request for reassignment;
q. on September 10, 2010, S1 denied her compensatory time;
r. on October 8, 2010, he denied her family medical leave;
s. on November 3, 2010, S1 required her to complete mandatory training which she had previously completed; and
t. on November 4, 2010, S1 yelled, screamed, and intimidated her in the presence of her peers and co-workers.1
Following a two-day hearing held on September 6 and 7, 2011, the AJ issued a decision on December 22, 2011, finding no discrimination. The AJ found that Complainant did not establish a prima facie case of hostile environment based on her race, national origin, sex, age, and in reprisal for prior EEO activity. The AJ further found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding Complainant's allegation that she was charged with AWOL, the AJ noted that Complainant testified that she failed to report to duty as scheduled and did not telephone a supervisor. The record reflects that Complainant's tour begins at midnight and she arrived at 1:30 a.m. It was Complainant's responsibility to inform her supervisor that she was not able to report to duty and to later enter a leave request for the time missed. The AJ further noted that in accordance with Agency policy, since Complainant failed to request leave or enter any request for leave in the time management system to account for the 1.5 hours, S1 was authorized to charge Complainant AWOL.
The AJ noted during his testimony, S1 stated that on June 3, 2010, Complainant "took annual leave. And she came to my office and she requested an annual leave. I - - annual leave has been granted. That's the same day when she requested, she had been granted. And she was supposed to come June the 4th to work. She never came. She came - - instead of coming 11:30 or twelve midnight, she came at 1:30 without calling the unit and without saying what's was the reason." S1 stated that he charged Complainant AWOL "until she came and she explained. And she put - - entered her time and she requested time in the DHCP. Then, it was corrected."
Regarding Complainant's allegation that her request to be transferred to another care line was denied, the AJ noted that Complainant applied for a transfer to another care line, not a reassignment within her own care line, and was not selected by that care line. The AJ noted that Complainant's supervisors were not involved in that decision and they did not have any input into those decisions. The AJ further noted that Complainant's supervisors are not authorized to approve transfers to another care line and could not have denied Complainant's transfer request.
S1 testified that he did not deny Complainant's transfer request. Specifically, S1 stated that he does not have the ability "to deny, to reassign, or to transfer...but the only thing that [Complainant] has - - the employee has to do is to just only to write a memo." S1 further stated "we work in the federal government. It's an equal opportunity. If there's a job opening, you apply. If they take you, we give you one pay period to work with us the week and then we transfer."
Complainant's second-level supervisor (S2) stated that when she learned that Complainant requested to be transferred to another care line, she notified Complainant by email "I am not in a position to approve your transfer requests, but let me know if I can assist you in any other ways." S2 further stated "if a selection is made, the other care line will notify us and we will make every effort to release them as soon as we can." S2 stated that at that time, Complainant did not share anything with her concerns about S1. Specifically, S2 stated "all [Complainant] said was general statement and she didn't want to - - I told her. . . I need to know the specifics. Also, not only that, I need to know the specifics; I need to get the concerns in writing. But neither verbal sharing [nor] written sharing occurred."
S2 stated that when she learned that Complainant alleged that S1 yelled at her in front of her co-workers, she had a talk with S2 and "he informed me what occurred. And there were witnesses, too." S2 stated at that point she did not feel there was sufficient evidence indicating that Complainant was working in a hostile work environment. S2 stated "I did everything I needed to do based on the vague transfer request that [Complainant] gave me."
Further, S2 stated that during the relevant period, she received several complaints from other employees about S1. S2 stated that several employees felt that S1 "is rough. And - - and when I talk to him about it, he has given me the reasons. And - - and he - - since he is a clinician . . . he's hands-on. And when he sees practice issues, he addresses it then and there. And to me, that unit, practice issues were sort of not addressed. And I think once he went over there as a new manager, starting to talk to people, like, reinforcing the practice - - nursing practice, I'm talking about - - I - - I could see that he got a lot of complaints and push-back because [it] seemed like . . . people were not held responsible until then." S2 stated that she told S1 "we cannot make everybody happy. There will still be people getting upset and angry but you still need to do the right thing."
Regarding Complainant's allegation that she was denied compensatory time, the record reflects that Complainant did not follow the union agreement and Agency policy requirements for requesting and receiving compensatory time. The record reflects that without prior approvals and required paperwork, Complainant was not eligible for compensatory time. The AJ noted that it was Complainant's failure to follow procedure that resulted in her not receiving compensatory time.
S1 testified that management explained to Complainant several occasions "that whenever you would like to stay for patient's care, she has to have pre-approval. And the pre-approval . . . has to be from the charge nurse if the charge - - if the manager is not in the unit. What was going to my attention that, if you review the record for [Complainant] - - [Complainant], she decided to stay as much as she wants, she can come whenever she wants, she can leave it whenever she wants...her explanation is that I've been here for three decades. I can come whenever I want to come and can leave anytime I want to leave." S1 further stated that during the relevant time Complainant never followed the policy for requesting and receiving compensatory time.
Regarding Complainant's allegation that she was denied annual leave, the AJ noted that Complainant's request was denied because of staffing issues. The record reflects that nurses on the Operative Care line may only take two consecutive weeks of vacation leave at one time. The record further reflects that during her testimony, Complainant stated although she was familiar with the Agency's leave policy and knew in January 2010 that she was only approved for two weeks of consecutive leave in October 2010, she purchased an airline ticket for a four week trip instead of the two weeks that she had been approved, hoping that S1 would consider her ticket purchase and approve her leave request. The record reflects that no other nurse was approved for more than three consecutive weeks of vacation leave. However, Complainant received the requested four consecutive weeks of vacation leave.
S1 stated that in May 2010, he informed his staff that they can take up to two weeks of annual leave. S1 further stated in July 2010, Complainant requested 160 hours of annual leave and he denied her request. Specifically, S1 stated that he told Complainant "her maximum two weeks. She came to my office; we talk about it and did explain to her that maximum you can take two weeks. [Complainant], she went and she entered it one more time and she's requesting 160 hours. I replied to her that maximum 80 hours, she can leave - you can - - you can take. [Complainant], came to me, after August the 16th telling me that I already purchased a ticket...and she start from August the 16 until she left . . .on a daily basis going to the director of the hospital complaining all over the places talking in a bad way about the manager, how I'm not approving her - - her leave. Ma'am, none of the staff of my unit took more than two weeks. I am short of staff and . . . on the top of it, they are sending letters to the secretary of the Veterans Affairs, how bad is the condition in Nursing Unit 5-B, how the nursing unit is under-staffed; how the is the situation is in the - - unfair; how we are over-tired. So how - - how I would allow it to happen that I want to grant somebody annual leave?"
Further, S1 stated that he and S2 told Complainant that she needed to find out if her co-workers would give up their time for her. Specifically, S1 stated that he told Complainant "if you go, you negotiate with your colleague. If your colleague will cover your days when you want to leave, we can give you from October 18 to November the 14th...the colleagues step in."
S2 testified that in regard to annual leave requests, management "tried to get a schedule out, like, for the whole year before the calendar year ends. And people sign up and we try to make sure that everybody gets . . . a fair chance at getting the annual leave, especially during peak time...and if there are request for longer periods, it's negotiable, and if somebody. . . can swap with co-workers, that's permitted." S2 further stated that employees are allowed to take two consecutive weeks of vacation time. S2 stated that some time in 2009, Complainant requested more than two weeks of vacation and "I tried to explain it to [Complainant] that I do not have that power to grant her that leave because my goal is to ensure that we have people to take care of the veterans. And I told her, however, it is doable if people will give up their time for her and that she can work among her peers through the Unit-Based Shared Governance Council."
Regarding Complainant's request to work a twelve-hour shift, the AJ noted that nurses schedule themselves in the CareWare System and if Complainant wanted the twelve-hour shift she could have done so herself. S1 testified that he did not deny Complainant's request to work a twelve-hour shift because "she never requested." S1 further stated "I've been requesting from [Complainant] if she would like to consider twelve-hour; she been refusing."
S2 stated that management needs "to give people forty hours and we are not required to put people on twelve hours." S2 stated that while she did not discuss with S1 the possibility of putting Complainant back to twelve-hour shifts, she has "monthly meetings with all the nurse managers multiple times, the goal for us to - - is to, well, kind of meet the needs of our employees, too, not just meet the needs of our patients. So I tell them over and over, 'do everything you can, but we cannot compromise the unit activities.'"
Regarding Complainant's allegation that she was not made to work without having a Sunday off, S1 denied it. Specifically, S1 stated that "the practice is as follow: If you work this weekend, next weekend you are off but if there is any - - we start rotating people so they can fill these spots." S1 further stated "I do not agree that [Complainant] - - I - - I changed her to - - to work every weekend. If she can prove it, let her prove it on the table now to show me. It's not true." Moreover, S1 stated that Complainant never complained to him that she was not getting Sundays off.
Regarding Complainant's allegation that she was denied Family Medical Leave (FMLA), the AJ noted that there was no record of Complainant making a request for FMLA in October 2009. The AJ noted, however, Complainant was granted forty hours of FMLA in 2010. S1 and S2 both stated that they have never received Complainant's request for FMLA.
Regarding Complainant's allegation that S1 subjected her to a hostile work environment, the AJ noted that the record reflects that S1 is a large man with a loud manner and that all employees, including Complainant, in the unit were spoken to in the same manner.
S1 denied subjecting Complainant a hostile work environment. S1 acknowledged that his tone is loud, and "we work in nursing station where everybody is talking. And we will talk over somebody, but I do not mean harm. I am not a mean person in my nature. But sometimes I need to make my point with you, so my - - my voice - - right now I'm sitting over here. I'm not angry, but I am loud, you know." S1 further stated "I do not treat anybody with disrespect. I treat everybody with respect. As I stated earlier, I do not deny that my voice is loud. I may talk to [Complainant] about something, but it's not to intimidate, it's not to humiliate, it's not to threaten. I am the manager in the unit. And I ask her simple question and my expectation that I have to have an answer." Moreover, S1 stated that he never issued any disciplinary actions against Complainant.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that the AJ erred finding no discrimination. For instance, Complainant argues that the AJ "ignored and overlooked substantial evidence in the record and credible witness testimony that showed the extremely, hostile treatment that Complainant endured from her supervisor, particularly after she had the courage file a complaint about him to the Director of the Hospital and to later file a formal EEO Charge."
ANALYSIS AND FINDINGS
As an initial matter, the Commission notes that one witnesses testified by telephone and another witness testified by videoconference at the hearing held by the AJ. The Commission has held that testimony may not be taken by telephone in the absence of exigent circumstances, unless at the joint request of the parties and provided that specified conditions have been met. See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).2 It is clear that there were no issues of witness credibility that might have been impacted by the taking of testimony by telephone, and neither party objected to the manner in which those witnesses testified.
In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, the AJ, as in Allen, there is no indication of objection to the use of video-conferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse her discretion by electing to hold a video-conference and telephonic hearing.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 9, 2012
__________________
Date
1 The record reflects that claims q, r, s, and t were later amended to the instant complaint.
2 In Louthen, the Commission has promulgated its policy regarding the taking of telephonic testimony in the future by setting forth explicit standards and obligations on its Administrative Judges and the parties. Louthen requires either a finding of exigent circumstances or a joint and voluntary request by the parties with their informed consent. When assessing prior instances of telephonic testimony, the Commission will determine whether an abuse of discretion has occurred by considering the totality of the circumstances. In particular, the Commission will consider factors such as whether there were exigent circumstances, whether a party objected to the taking of telephonic testimony, whether the credibility of any witnesses testifying telephonically is at issue, and the importance of the testimony given telephonically. Further, where telephonic testimony is improperly taken, the Commission will scrutinize the evidence of record to determine whether the error was harmless, as is found in this case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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